Yes, in some circumstances, the Digital Millennium Copyright Act (“DMCA”) prohibits owners of certain computer and electronic equipment from attempting to repair the devices by accessing the computer software. From the vantage of  the manufacturer of the video game console, preventing access to the console software helps prevent piracy. But, there are exceptions, and consumers can expect more exceptions in the future. Here is what you need to know.

The DMCA was enacted to provide additional protection for copyright holders. Among other provisions, the DMCA made it unlawful to “circumvent a technological measure that effectively controls access to” parts of a device where copyrighted material is located and access to the software. See 17 U.S.C. § 1201. Unfortunately for consumers, this provision has been interpreted broadly to prevent access to devices for the purpose of repairing the device.

However, as noted, there are exceptions. Copyrights are administered by the Library of Congress. Every three years, the Librarian adopts exceptions and the most recent set of exceptions was issued on October 28, 2021. See here. A number of previous exceptions were renewed (with modification) and a couple were added. Modifications that were sought by consumer and academics included these:

• Expanding the scope of exceptions for movies, television shows and videos for legitimate research and preservation purposes
• Adding marine vessels to the exception that permits access to computer programs that operate land vehicles to allow diagnosis, maintenance and repair
• Expanding the scope of the exceptions for devices primarily designed for use by consumers and medical devices/systems to allow diagnosis, maintenance and repair

In general, all of the exceptions include a couple of caveats such as:

• The device or item at issue was lawfully made, acquired and owned (or licensed)
• That access of the computer programs or the device is NOT for the purpose of gaining unauthorized access to other copyrighted works or is NOT for unlawful infringing purposes

In general, the exceptions (including the new ones and the modifications) are justified as narrowly tailored and supported by copyright “fair use” factors that courts consider when evaluating a copyright infringement or DMCA violation claim. Some use of copyrighted works are not infringing if the use is deemed “fair use.” As one example, a “fair use” is often a use that is transformative in nature.

The Anti-Circumvention Prohibition in Detail

Section 1201 of the DMCA creates two distinct prohibitions. The first bans circumventing access controls protecting copyrighted works. The second bans trafficking in tools or services designed primarily to circumvent those controls. Video game consoles are a prime example of a device where both prohibitions come into play. Console manufacturers embed encryption and digital rights management (DRM) technology in firmware specifically to prevent unauthorized access to the underlying software. When a technician bypasses that DRM to diagnose a hardware fault, they may technically be circumventing an access control even if their purpose is entirely benign and even if they have no interest in copying any game.

Courts have interpreted Section 1201 broadly. In MDY Industries, LLC v. Blizzard Entertainment, Inc., 629 F.3d 928 (9th Cir. 2010), the Ninth Circuit held that the anti-circumvention provisions apply even where the circumventing software (a game bot) did not itself copy protected expression. This expansive reading has made independent repair of firmware-locked devices legally hazardous without a formal exemption from the Library of Congress.

The Triennial Rulemaking Process: How Exemptions Are Created

The DMCA requires the Copyright Office and the Librarian of Congress to conduct a rulemaking every three years to consider new exemptions to the anti-circumvention rule. Any person or organization may petition for an exemption by demonstrating that the prohibition on circumvention has had, or is likely to have, an adverse effect on the ability to make noninfringing uses of copyrighted works. The 2021 rulemaking was the eighth such cycle and produced the most consumer-friendly exemptions to date. In addition to the gaming-adjacent expansions noted above, the 2021 rules extended repair exemptions to cover motorized land vehicles, medical devices, and consumer products generally — a significant broadening from prior cycles that had been more narrowly tailored to specific product categories.

Critics of the triennial process argue that it places an unreasonable burden on consumers who must affirmatively prove harm every three years just to preserve rights that, absent the DMCA, would be theirs by default. The Right to Repair movement has been a vocal advocate for legislative reform that would make these exemptions permanent and broader.

Video Game Console Repair: What Is and Is Not Permitted

Under current law, a consumer or independent repair technician may:

• Replace physical hardware components (power supplies, disc drives, HDMI ports) that do not require circumventing DRM software to diagnose or fix
• Access certain software under the 2021 exemption for consumer devices to the extent necessary to diagnose, maintain, or repair the device — provided the access is not used to play pirated games or otherwise infringe
• Restore factory firmware to a bricked console using tools provided or authorized by the manufacturer

What remains legally problematic includes:

• Installing custom or unofficial firmware (“jailbreaking”) that removes DRM protections, even if the stated purpose is only repair
• Distributing or selling tools whose primary purpose is circumventing console DRM, regardless of the end user’s intent
• Modifying a console to play games from regions for which it was not licensed, since region-lock circumvention is treated as an access-control bypass

Legislative Momentum: The Right to Repair Act

Congress has considered multiple versions of a federal Right to Repair Act that would require manufacturers of electronics and other products to make diagnostic tools, software, and parts available to consumers and independent repair professionals. Proponents argue that the existing DMCA framework effectively creates a repair monopoly in favor of manufacturers and authorized service networks, driving up repair costs and accelerating e-waste. Opponents, led primarily by large technology and gaming companies, contend that mandatory repair access would facilitate piracy, undermine product security, and expose manufacturers to liability when third-party repairs cause damage.

Several states, including Massachusetts, have passed Right to Repair legislation in specific contexts, most notably for automotive telematics systems. The Federal Trade Commission issued a policy statement in 2021 supporting right-to-repair principles and pledging to use its existing enforcement authority against repair restrictions that constitute unfair methods of competition under Section 5 of the FTC Act.

Practical Guidance for Consumers and Repair Technicians

If you operate an independent electronics repair business or are a consumer considering a DIY repair of a game console, the safest approach is to restrict your work to hardware components that do not require bypassing any DRM or encryption layer. Before using any third-party repair tool that interacts with console firmware, verify whether that tool has been the subject of any enforcement action and whether its functionality falls within the current Library of Congress exemptions. Businesses that offer console repair services should consult with an intellectual property attorney to review their practices and ensure they are operating within the bounds of current DMCA exemptions.

Contact Revision Legal

Revision Legal’s intellectual property attorneys advise clients on DMCA compliance, right-to-repair issues, and copyright strategy. If you have received a DMCA demand letter or need guidance on the boundaries of permissible repair activities under current law, contact us today.